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Environmental Crime Comes of Age: The Evolution of Criminal Enforcement in the Environmental Regulatory Scheme

The environmental crimes program in the United States has entered its third decade, yet questions remain about what makes an environmental violation criminal. Our environmental laws make only limited distinctions between criminal and civil liability, so theoretically the same conduct could give rise to criminal, civil, or administrative enforcement. This article will reconsider concerns that have been raised historically about the role of criminal enforcement under the environmental laws and will suggest an answer to the question of what makes an environmental case criminal. The article addresses claims that the complexity of environmental law makes it a difficult fit for criminal enforcement and that the mental state requirements for environmental crime make it possible for corporate officials to be convicted for conduct that they do not know is occurring. The article considers the role of prosecutorial discretion in environmental cases and asserts that criminal prosecution should be reserved for cases involving (1) significant harm of risk of harm to the environment or public health; (2) deceptive or misleading conduct; (3) deliberate efforts to operate outside the regulatory system; or (4) significant and repetitive violations of environmental laws. By limiting criminal prosecution to these cases, prosecutors can ensure that criminal enforcement will advance the goals of the environmental regulatory scheme.